Section 5. Clause 1.
Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a
Majority of each shall constitute a Quorum to do Business;
but a smaller Number may adjourn from day to day, and may
be authorized to compel the Attendance of absent Members,
in such Manner, and under such Penalties as each House may
provide.

Clause 2.
Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.

Clause 3.
Each House shall keep a Journal of its Proceedings and
from time to time publish the same, excepting such Parts
as may in their Judgment require Secrecy; and the Yeas and
Nays of the Members of either House on any question shall,
at the Desire of one fifth of those Present, be entered on
the Journal.

Clause 4.
Neither House, during the Session of Congress, shall,
without the Consent of the other, adjourn for more
than[p.122]three days, nor to any other
Place than that in which the two Houses shall be
sitting.

Each House, in judging of elections under this clause,
acts as a judicial tribunal, with like power to compel
attendance of witnesses. In the exercise of its
discretion, it may issue a warrant for the arrest of a
witness to procure his testimony, without previous
subpoena, if there is good reason to believe that
otherwise such witness would not be forthcoming.347
It may punish perjury committed in testifying before a
notary public upon a contested election.348
The power to judge elections extends to an investigation
of expenditures made to influence nominations at a primary
election.349Refusal to permit a person
presenting credentials in due form to take the oath of
office does not oust the jurisdiction of the Senate to
inquire into the legality of the election.350Nor does such refusal unlawfully deprive the
State which elected such person of its equal suffrage in
the Senate.351

For many years the view prevailed in the House of
Representatives that it was necessary for a majority of
the members to vote on any proposition submitted to the
House in order to satisfy the constitutional requirement
for a quorum. It was a common practice for the opposition
to break a quorum by refusing to vote. This was changed in
1890, by a ruling made by Speaker Reed, and later embodied
in Rule XV of the House, that members present in the
chamber but not voting would be counted in determining the
presence of a quorum.352The Supreme Court upheld this
rule inUnited States v. Ballin,353 saying that
the capacity of the House to transact business is “created
by the mere presence of a majority,” and that since the
Constitution does not prescribe any method for de[p.123]termining the presence of such majority “it
is therefore within the competency of the House to
prescribe any method which shall be reasonably certain to
ascertain the fact.”354The rules of the Senate provide
for the ascertainment of a quorum only by a roll
call,355 but in a few cases it has held that if a
quorum is present, a proposition can be determined by the
vote of a lesser number of members.356

In the exercise of their constitutional power to
determine their rules of proceedings, the Houses of
Congress may not “ignore constitutional restraints or
violate fundamental rights, and there should be a
reasonable relation between the mode or method of
proceeding established by the rule and the result which is
sought to be attained. But within these limitations all
matters of method are open to the determination of the
House . . . The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always
subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge
of any other body or tribunal.”357Where a rule
affects private rights, the construction thereof becomes a
judicial question. InUnited States v. Smith,358
the Court held that the Senate’s attempt to reconsider its
confirmation of a person nominated by the President as
Chairman of the Federal Power Commission was not warranted
by its rules and did not deprive the appointee of his
title to the office. InChristoffel v. United
States,359 a sharply divided Court upset a
conviction for perjury in the district courts of one who
had denied under oath before a House committee any
affiliation with Communism. The reversal was based on the
ground that inasmuch as a quorum of the committee, while
present at the outset, was not present at the time of the
alleged perjury, testimony before it was not before a
“competent tribunal” within the sense of the District of
Columbia Code.360 Four Justices, speaking by
Justice Jackson, dissented, arguing that under the rules
and practices of the House, “a quorum once established is
presumed to continue unless and[p.124]until
a point of no quorum is raised” and that the Court, was in
effect, invalidating this rule, thereby invalidating at
the same time the rule of self–limitation observed by
courts “where such an issue is tendered.”361

Congress has authority to make it an offense against
the United States for a Member, during his continuance in
office, to receive compensation for services before a
government department in relation to proceedings in which
the United States is interested. Such a statute does not
interfere with the legitimate authority of the Senate or
House over its own Members.362In upholding the power
of the Senate to investigate charges that some Senators
had been speculating in sugar stocks during the
consideration of a tariff bill, the Supreme Court asserted
that “the right to expel extends to all cases where the
offence is such as in the judgment of the Senate is
inconsistent with the trust and duty of a Member.”363It
cited with apparent approval the action of the Senate in
expelling William Blount in 1797 for attempting to seduce
from his duty an American agent among the Indiansand for
negotiating for services in behalf of the British
Government among the Indians—conduct which was not a
“statutable offense” and which was not committed in his
official character, nor during the session of Congress nor
at the seat of government.364

InPowell v. McCormack,365 a suit challenging
theexclusionof a Member–elect from the House of
Representatives, it was argued that inasmuch as the vote
to exclude was actually in excess of two–thirds of the
Members it should be treated simply as anexpulsion.The
Court rejected the argument, noting that the House
precedents were to the effect that it had no power to
expel for misconduct occurring prior to the Congress in
which the expulsion is proposed, as was the case of Mr.
Powell’s alleged misconduct, but basing its rejection on
its inability to conclude that if the Members of the House
had been voting to expel they would still have cast an
affirmative vote in excess of two– thirds.366

The object of the clause requiring the keeping of a
Journal is “to insure publicity to the proceedings of the
legislature, and a correspondent responsibility of the
members to their respective constituents.”367When the Journal of either House is put in
evidence for the purpose of determining whether the yeas
and nays were ordered, and what the vote was on any
particular question, the Journal must be presumed to show
the truth, and a statement therein that a quorum was
present, though not disclosed by the yeas and nays, is
final.368But when an enrolled bill, which has been
signed by the Speaker of the House and by the President of
the Senate, in open session receives the approval of the
President and is deposited in the Department of State, its
authentication as a bill that has passed Congress is
complete and unimpeachable, and it is not competent to
show from the Journals of either House that an act so
authenticated, approved, and deposited, in fact omitted
one section actually passed by both Houses of
Congress.369

351
Id., 615. The existence of this power in both houses
of Congress does not prevent a State from conducting a
recount of ballots cast in such an election any more
than it prevents the initial counting by a
State.Roudebush v. Hartke,
405 U.S. 15 (1972).

352
A. Hinds’Precedents of the House of
Representatives(Washington: 1907), §§ 2895–2905.

356
4 A. Hinds’Precedents of the House of
Representatives(Washington: 1907), §§ 2910–2915; 6 C.
Cannon’sPrecedents of the House of
Representatives(Washington: 1936), §§ 645, 646.

357
United States v. Ballin,
144
U.S. 1, 5 (1892). The Senate is “a
continuing body.”McGrain v. Daugherty,
273 U.S. 135, 181–182 (1927). Hence its
rules remain in force from Congress to Congress except
as they are changed from time to time, whereas those of
the House are readopted at the outset of each new
Congress.

369
Field v. Clark,
143 U.S. 649 (1892);Flint v. Stone
Tracy Co.,
220 U.S. 107, 143 (1911). See the
dispute in the Court with regard to the application of
Field in an origination clause dispute. United States v.
Munoz–Flores, 495 U.S. 385, 391 n. 4 (1990), and id.,
408 (Justice Scalia concurring in the judgment). A
parallel rule holds in the case of a duly authenticated
official notice to the Secretary of State that a state
legislature has ratified a proposed amendment to the
Constitution.Leser v. Garnett,
258 U.S. 130, 137 (1922);see also
Coleman v. Miller,
307 U.S. 433 (1939).